Seaboard All-florida Ry. v. Leavitt

• Decision Date: 31 May 1932
• Parties: SEABOARD ALL-FLORIDA RY. v. LEAVITT et al.[*]
• Court: Florida Supreme Court

141 So. 886

105 Fla. 600

SEABOARD ALL-FLORIDA RY. v. LEAVITT et al.^[*]

Florida Supreme Court

May 31, 1932

En Banc.

Suit by Florabel Leavitt, joined by her husband and next friend against the Seaboard All-Florida Railway and others. From an adverse order, the named defendant appeals.

Affirmed and remanded for further proceedings.

ELLIS J., dissenting. Appeal from Circuit Court, Broward County Vincent C. Giblin, judge.

COUNSEL

Farmer & Grantham, of Miami, for appellant.

Dillon, Ferguson & Wells, of Miami, for appellees.

OPINION

BROWN J.

This is an appeal from orders made in the course of a foreclosure proceeding in the circuit court of Broward county. In August, 1925, William V. Tongeln executed and delivered a mortgage to Florabel Leavitt covering a tract of land in Broward county comprising 20 acres, to secure the payment of three promissory notes respectively payable one, two, and three years from date, aggregating $22,500, which mortgage was duly recorded within a few days after its execution. About seven months later, in March, 1926, the Seaboard All-Florida Railway, appellant here, instituted condemnation proceedings in the circuit court of Broward county to acquire a strip of land 100 feet wide, containing 1 1/2 acres, for right of way purposes, through and over the land described in said mortgage, making Tongeln, as owner, and Florabel Leavitt, as mortgagee, parties defendant. The petition was filed under sections 5084-5086, Comp. Gen. Laws. Section 5087, Comp. Gen. Laws provides that:

'When the petition is filed the clerk shall issue a notice or notices directed to the sheriff or sheriffs of the county or counties wherein the defendants or any of them reside, commanding him or them that he or they make known to the defendants that they be and appear in the said circuit court on a day named in said notice not less than thirty days from the date thereof, to show what interest they have in the property and to show cause why it should not be taken for the uses and purposes set forth in the petition, which notice shall be served by the proper sheriffs in the same manner as writs of summons are served not less than ten days before the return day of such notice or notices. Alias and pluries notices may be issued as in other cases, returnable, however, in the manner aforesaid.'

This section further provides that, after issuing the notice above provided for, the clerk shall in every case forthwith publish in some newspaper published in the county, once a week, for four consecutive weeks, a notice directed to all persons interested in or having liens upon the property, in the same terms as the above notice, to appear and show cause or else be barred, and that the clerk shall file a certificate of such publication of record in the cause. This publication of notice, however, does not dispense with the necessity of compliance with the service of a proper notice upon the named resident defendants whose places of residence are known, and who are accessible to service, as required by the above-quoted provision of the statute. Tibbetts v. Olson, 91 Fla. 824, 108 So. 679.

The petition as filed appears to have complied with the statute and the clerk issued a notice captioned as follows:

'Seaboard All-Florida Railway, Plaintiff, v. William V. Tongeln and Florabel Leavitt, Defendants.' However, the name of Floriabel Leavitt was omitted from the notice. The notice was directed to the sheriff of Dade county, and the body of it read as follows:

'You are hereby commanded to make known to William V. Tongeln, Defendant in the above entitled cause, that he be and appear in the Circuit Court in and for Broward County, Florida, on Monday, May 3, A. D. 1926, to show what interest he may have in and to the following described property, to-wit: (describing the property) and to show cause if any he can, why the said property should not be taken for uses and purposes, to-wit: for a right-of-way by the plaintiff as alleged in its petition filed in said Circuit Court in and for Broward County, Florida.' The notice was properly tested in the name of the circuit judge and signed by the clerk of the circuit court for Broward county.

Both defendants were residents of Dade county, and the foregoing notice was sent to the sheriff of Dade county and he returned the same into court with the following entry, signed by the sheriff, thereon: 'Received this notice March 25, 1926, and served the same March 25, 1926, by delivering true copies thereof to Flora Bell Leavitt and William Tongeln, within named defendants, and at the same time showing this original and explaining the contents thereof.'

In due time, the clerk also published notice as required by the statute.

The defendant William V. Tongeln appeared in response to the above-quoted notice; the defendant Florabel Leavitt did not. A trial was had and the jury returned a verdict in which it was found that the defendants, naming both of them, were entitled to receive and were awarded compensation for the described property in the sum of $2,500 and $250 as reasonable attorney's fees, and that the defendant William V. Tongeln was entitled to receive as his proper share of the aforesaid compensation the sum of $2,500, and the defendant Florabel Leavitt was entitled to, and that she receive, nothing. Whereupon the court rendered judgment in accordance with the verdict. These moneys were paid into court by appellant as required by the statute, and in due course were paid out to the defendant Tongeln and his attorney. The petitioner went into possession of the strip of land, constructed its railway thereover, and occupied the same for railroad purposes.

Subsequently, in June 1927, Florabel Leavitt, joined by her husband and next friend, H. A. Leavitt, filed her bill to foreclose the mortgage she held against William V. Tongeln, making appellant, Seaboard All-Florida Railway, also a party defendant. The defendant railway company set up the condemnation proceedings as a defense, so far as it was concerned, as to that portion of the property which had been awarded to it in said condemnation proceedings. The complainants replied that the condemnation proceedings were void and of no effect as against Florabel Leavitt, because the summons did not command the sheriff of Dade county that he make known to said Florabel Leavitt that she be and appear in the said circuit court on the day named in said notice, to show cause, etc., and hence that the court never acquired jurisdiction.

The case was referred to a special master for findings on both law and fact, and a certified copy of the condemnation proceedings was offered in evidence. The master found that the notice served by the sheriff on Florabel Leavitt was void. Exceptions were filed by the defendant railway company which were overruled by the court. The court rendered a final decree ascertaining the mortgage indebtedness to be something over $27,000 and ordered a sale of all the property except the strip of land covered by the condemnation proceedings, as to which the court retained jurisdiction to adjudicate the right, interest, and claims as between the complainant Florabel Leavitt and the Seaboard All-Florida Railway and to enter in connection therewith all such future orders and decrees as should be found meet and proper. The land, less this right of way strip, was sold under the decree and bought in by the complainant for $2,000. On September 4, 1928, a supplemental final decree was rendered finding the equities with the complainant in the mortgage foreclosure and ordering the right of way strip sold to satisfy the balance due on the mortgage debt, which was ascertained to be $25,963.95. The defendant railway company filed a motion for a rehearing as to this supplemental final decree, which motion was granted by an order dated December 21, 1928, in which the court stated that, while the court was of the opinion that the equity of the cause was with the complainant and against the defendant railroad corporation, but being of the opinion that the nature of the relief afforded to the complainant by the supplemental decree should be other and different, the court would enter a modified and amended supplemental decree upon application therefor by the complainants upon five days' notice to the defendant railway company. Subsequently a motion for the entry of supplemental final decree was filed by counsel for the complainants, and on March 12, 1929, the chancellor entered an order referring the matter to a special master and directing him to ascertain the date of the appropriation by the defendant of the strip of land involved and to ascertain the fair and reasonable market value of said land at the time of appropriation thereof by the defendant railway company, and to report his findings on such question together with a transcript of the proceedings. From said orders entered by the chancellor on December 21, 1928, and March 12, 1929, this appeal was taken by the defendant Seaboard All-Florida Railway.

In connection with the order of March 12, 1929, the chancellor Circuit Judge Giblin, filed an able opinion discussing the questions involved, in which opinion he reached the conclusion that complainant was not entitled to a foreclosure as against the strip of land in the possession of the railway company for the entire balance due on the mortgage debt, nor should the defendant company be required, in order to effect a release of the said right of way strip from the lien of the complainant's mortgage, to pay such unpaid balance of the mortgage debt, but that the defendant railway company should be required to satisfy the deficiency up to the amount of the value of the appropriated strip, with interest, estimated as of the time of the...